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CHAPTER 3 – HOMELAND SECURITY

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NY: HOMELAND SECURITY - AIRLINES SUED FOR THREE WRONGFUL DEATHS AND BILLIONS IN PROPERY DAMAGES ARISING OUT OF 911 ATTACKS ON WORLD TRADE CENTER - AIRLINES CAN NOT TAKE DEPOSITIONS OF 6 FBI AGENTS

On July 16, 2009 in consolidated case called In Re September 11 Litigation, U.S. District Judge Alvin K. Hellerstein, Southern District of New York, 621 F. Supp. 2d 131; 2009 U.S. Dist. LEXIS 61594, held that for national security reasons, the airlines defendants can not take depositions of these FBI agents, seeking to put the blame on the U.S. Government absolve themselves from fault.

The three wrongful death lawsuits were filed by families who turned down compensation under the Victim Compensation Fund established by Congress; accepting that compensation would have prevented them from filing a lawsuit against the airlines. The airline defendants include: American Airlines, Inc.; AMR Corporation; United Air Lines, Inc.; UAL Corp.; US Airways Group, Inc.; US Airways, Inc.; Delta Air Lines, Inc.; Continental Airlines, Inc.; and AirTran Airways, Inc. Other defendants include Colgan Air, Inc., Argenbright Security, Inc., Globes Aviation Services Corporation, Globe Airport Security Services, Inc., Huntleigh USA Corp., ICTS International NV, The Boeing Company, The Massachuesttes Port Authority, The Metropolitan Washington Airport Authority.

The Court described the expected testimony of the six FBI agents:

"Scott Billings was a special agent stationed in Oklahoma City. He was a member of the Joint Terrorism Task Force on September 11, 2001 and searched Moussaoui's Oklahoma residence after the attacks. Billings testified regarding written materials and other items recovered in that search which, the Aviation Defendants argue, could support an argument as to the extent of the terrorists' plans to penetrate aviation security and hijack airplanes. The materials seized by Billings included research on American airports, flight simulator software, contact information for other terrorists, and Moussaoui's notes from flight training sessions.

Erik Rigler, a retired FBI agent, testified as a witness for the public defender in the Moussaoui trial. Rigler discussed an investigative report issued by the Inspector General of the Department of Justice as to five missed opportunities to learn about the plans of the two terrorists who hijacked the plane that was crashed into the Pentagon, and about the lack of information sharing between the FBI and the Central Intelligence Agency ("CIA").

Michael Rolince, the section chief of the FBI's International Terrorism Operations Section on and before September 11, 2001, testified that the FBI had intelligence before September 11 suggesting that an attack might occur and could target civil aviation in the United States. He also testified about the investigative techniques in use at the time.

Harry Samit, an FBI Special Agent, testified at length that he had been assigned on August 15, 2001 to investigate Moussaoui's unusual activity as a trainee at a Minnesota flight academy. Samit conducted interviews and searches of Moussaoui and Moussaoui's associate, Hussein al-Attas.

Coleen Rowley, a former FBI Special Agent, has personal knowledge of the items Moussaoui had in his possession at the time of his arrest, including short-bladed knives. She also observed other items found amidst his personal property, such as the flight training materials.

Kenneth Williams was an FBI Special Agent assigned to the Phoenix Field Office from 2000 to 2001. The defendants' interest in deposing Williams arises from a memorandum he wrote alerting superiors that a large number of Middle Eastern students were training at civilaviation schools in Arizona."

The Court held they may not be deposed:

"The FBI represents that it remains engaged in a massive and sustained investigation, PENTTBOM, and that subjecting FBI agents to depositions regarding matters related to an ongoing investigation raises security and privilege concerns. The Aviation Defendants dismiss government apprehension about security because much of the information already exists in the public record. They add that precautionary measures could be taken to prevent any classified information from being disclosed during the depositions.

"The government's decision that the depositions requested are likely to interfere with its continuing investigation and compromise national security is reasonable and appropriate, not arbitrary and capricious. 28 C.F.R. § 16.26(b). The depositions sought necessarily will involve, or lead to disclosures of, pre- and post-September 11 intelligence, intra- agency communications, recommended countermeasures to anticipated threats, and other sensitive information. The precautions that the Aviation Defendants suggest are likely to impose substantial burdens on the government and on the court, and create unacceptable risks of inadvertent disclosures of protective information.

Prior FBI testimony can be used for a limited purpose:

The Court will allow the Airline Defendants to use the prior testimony of FB agents Samit (Minneapolis) and Billings (Oklahoma City) during the Moussaouri trial, to help prepare a written narrative for submission by both sides to the jury in this civil lawsuit. [Note: During his trial, Zacarias Moussaoui pled guilty to conspiracy to commit acts of terrorism, commit aircraft piracy, destroy aircrafts, use weapons of mass destruction, murder United States employees, and destroy property, as part of the September 11 attacks. See United States v. Zacarias Moussaoui, 01 Cr. 455 (LMB) (E.D. Va.) (plea accepted April 22, 2005) ("Moussaoui Trial"). "Because the case was death-eligible, the court and jury heard evidence as to whether Moussaoui should be sentenced to death or to life without possibility of parole. On May 3, the jury issued its verdict, rejecting the death penalty and finding that Moussaoui should serve a life sentence with no possibility of parole. The court sentenced Moussaoui to six life sentences."]

There was some "eye opening" FBI testimony at the trial about pre-911 investigative problems. The trial judge wrote:

"Samit was a special agent in the FBI's Minneapolis Field Office who worked in counterterrorism. On August 15, 2001, he received a report from a Minnesota flight training school concerning an atypical student. School personnel told Samit that the student, Zacarias Moussaoui, had no affiliation with any airline and very little experience flying planes. Nevertheless, he was studying to fly commercial jets, a relatively expensive and time-consuming endeavor, he was focusing on planes with a particular type of cockpit that would be easier than others to hijack, and he lived and was born abroad. Samit opened an investigation immediately.

"The next day, Samit interviewed Moussaoui and arrested him for immigration violations. Samit questioned Moussaoui's roommate, Hussein al-Attas, who related comments Moussaoui had made about his Muslimconvictions, disapproval of Israel/American policy, belief in Fatwas, and approval of harming citizens in a Jihad. During the post-arrest interrogation, Moussaoui answered questions about his background, friends, and family, giving extremely vague and incomplete answers. For example, Moussaoui stated that he could not remember the name of the company at which he had worked the previous year, his salary, or his jobdescription. Samit recounts pressing Moussaoui unsuccessfully for details about his finances, including how he secured funding to travel and attend flight school.

On August 17, Samit notified headquarters, passing the information he had obtained to a centralized intelligence office at the FBI, the International Terrorism Operations Section ("ITOS"). ITOS is composed of several units, each of which focuses on a particular area of international terrorism. Moussaoui had given up so little information that Samit did not know of his association with Osama Bin Laden. Moussaoui's Sunni faith led Samit to report his findings to the Radical Fundamentalist Unit at ITOS, rather than the ITOS unit focused specifically on Bin Laden.

By August 24, Samit had received additional information linking Moussaoui to Bin Laden, which prompted him to report his findings to the Bin Laden Unit. Samit did not receive a response from that unit prior to the attacks. Samit also requested permission to approach the federal prosecutor's office and pursue criminal charges, in part to permit a lawful search of Moussaoui's possessions seized from his Minneapolis residence. Samit's superiors denied the request because they believed that there was insufficient evidence that a crime existed.

The FBI was also concerned that if they failed to convince a judge to issue a criminal warrant, the rejection would have made it difficult to successfully obtain a similar warrant from the special court established under the Foreign Intelligence Surveillance Act ("FISA"). Nevertheless, the FISA request was denied.

Then the FBI made arrangements to deport Moussaoui to France, where he claimed to reside, recognizing that French law would permit a search of his possessions upon arrival. But the FBI did not receive authority to pursue deportation until the afternoon of September 10. On September 11, 2001, Moussaoui was still in FBI custody at Sherburn County Jail in Minnesota.

Based on the attacks and the information Samit had already obtained from the interrogations, a magistrate judge granted a search warrant for Moussaoui's possessions on September 11. The FBI completed the search immediately and found the following: a small knife, two utility tools containing small blades, boxing gloves, shin guards, field binoculars, operating manualsfor a 747 aircraft, new hiking boots, a laptop, a notebook, rent and utility bills for an Oklahoma address, identification documents and papers regarding the loss of identification documents, and a wire transfer receipt. Samit ordered a search of the Oklahoma address as well and transported Moussaoui to the Southern District of New York.

Billings was the FBI agent stationed in Oklahoma City who carried out the search of Moussaoui's residence pursuant to Samit's recommendation. Billings's testimony relates to the items he found in that search. See Section II.A.

During Samit's cross-examination, defense counsel sought to draw out mistakes or oversights that Samit, and others in the FBI, made during the pre-September 11 investigation, regarding investigative decisions and intra-agency communication. Samit discussed his subsequent accusations against FBI personnel for negligently handling pre- September 11 intelligence. Samit accused one senior FBI official of intentionally frustrating the investigation by refusing to submit a worthy application to search Moussaoui's apartment for fear that a rejection would hurt that official's prospects for career advancement. Samit accused the senior official of modifying language and removing facts to weaken the application, then refusing to submit it to the FISA court.

Samit recounted how another FBI official, arguing in favor of applying for a warrant to the FISA court, urged the senior official that Samit was simply trying to make sure that Moussaoui did not get control of a plane and crash it into the World Trade Center--a "metaphor," the official later explained, that he had "pulled . . . out of the air." Moussaoui Trial Tr. 1207.

Limited use in this civil lawsuit of the FBI testimony:

"The portions of testimony by Samit and Billings regarding how the terrorists planned to overcome airport and airplane security are admissible under Rule 807, preferably as bases for an agreed narrative and, potentially, in their own rights if the agreed narrative is shown to be insufficient. All testimony of the government's intramural discussions and alleged shortcomings is not relevant or admissible."

Legal Lessons Learned: National security considerations prevail over "pre-trial discovery" needs.

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FED: KATRINA - NATIONAL RESPONSE PLAN - FEMA AND OTHER OFFICIALS ENJOY SOVEREIGN IMMUNITY FOR DISCRETIONARY ACTIONS

On January 22, 2009, in Herbert Freeman, et al, v. United States of America, the U.S. Court of Appeals for the 5th Circuit (located in New Orleans), held 3 to 0 that the families of three elderly loved-ones who died in the Katrina Hurricane evacuations cannot sue for alleged negligence of FEMA and other officials, since the National Response Plan is a discretionary activity of the government, and therefore the U.S. Government and its officials enjoy immunity from suit. See full opinion at http://www.ca5.uscourts.gov/opinions/pub/07/07-31066-CV0.wpd.pdf.

Death of Ms. Freeman: Herbert Freeman’s mother died on Sept. 1, 2005 in the New Orleans Convention Center. Hurricane Katrina made landfall on Aug. 29, 2005 and Mrs. Freeman was chronically ill and decided to stay in her home. After waters from Lake Ponchartrain breached the Industrial Canal, her home was flooded. Her son borrowed a boat from a friend, and safely removed her and her wheelchair to higher ground. New Orleans police officers directed them to the Convention Center. She needed immediate medical attention. Officers told them that she would be evacuated by bus, but the bus never came. She died the next day. The Court wrote:

"Squalid conditions existed at the Convention Center, and it was not equipped with food, water, medical assistance, triage, or transportation. Ms. Freeman died the day after she arrived there. An image of her blanket-covered body was broadcast on national television."

Death of Ms. Elby: Ms. Elby was bedridden, and remained in her home with a care taker as the hurricane hit. Later they were rescued by boat, and delivered her and a care-taker to a highway, where they spent the night without food, water, shelter or medical care. The next day her family carried her to an Interstate highway, where a large truck took her to the Convention Center. She died at the Convention Center on September 1, 2005.

Death of Mr. DeLuca: Mr. DeLuca died on September 3, 2005 at the Louis Armstrong International Airport. A helicopter crew had rescued him from an assisted living facility and took him to the Ponchartrain Center in Kenner, LA. When this Center also flooded, another helicopter moved him to a cloverleaf on Interstate 10. He was taken to the cloverleaf on August 30, where he remained without water, food, shelter, medical assistance, triage or transportation until he collapsed on Sept. 2 from dehydration, stress, heat exhaustion and hunger. He was airlifted to the airport, where he died the next day.

National Response Plan: The families of the three deceased filed a lawsuit in U.S. District Court, alleging that FEMA and other officials contributed to the deaths by negligently failing to perform "nondiscretionary" duties arising under the National Response Plan (now replaced by the National Response Framework).

The NPR was promulgated by the Department of Homeland Security under a 2003 Presidential Directive, to "integrate Federal Government domestic prevention, preparedness, response, and recovery plans into one all-discipline, all hazards plan." Presidential Directive HSPD-5 (Feb. 28, 2003). Department of Homeland Security Secretary Michael Chertoff released the NPR in Dec. 2004. It included an Annex (called the Catastrophic Incident Annex) that formed the backbone for the federal government’s response to catastrophic incidents, like hurricanes. This included FEMA supporting state and local agencies. See 44 CFR 206.5.

The 5th Circuit noted that FEMA performed poorly, writing:

"the federal government was unprepared for Hurricane Katrina, and its response was universally criticized as inadequate, unorganized, and flawed [citing Congressional hearings]. Among the many shortcomings, FEMA officials displayed a lack of situational awareness that led to organizational inaction, and critical elements of the National Response Plan were executed late, ineffectively, or not at all. See H.R. Rep. No. 109-377, at 2-5. More specifically, the record reveals that federal agencies did not initiate decisive action to assist the Convention Center until September 2, 2005, and contains no evidence of any mission to aid evacuees at the [Interstate 10] Cloverleaf."

The lawsuits named former FEMA Director Michael Brown, DHS Secretary Chertoff, and numerous other officials, seeking to sue them personally, as well as in their official capacity. The U.S. Government filed motions to dismiss, arguing that Congress has not waived under the Federal Tort Claims Act (28 U.S.C. 2680(a)) or the Stafford Act (42 U.S.C. 5121 – 5208) the government’s sovereign immunity for discretionary conduct of its officials, and that the NPR did not create any nondiscretionary duties.

The U.S. District Judge granted the government’s motion, and dismissed the lawsuits on the basis of sovereign immunity. The Court refused plaintiffs’ request for pre-trial discovery prior to deciding to dismiss the case – therefore plaintiffs did not take any pretrial depositions or obtain any documents in pretrial discovery.

The families appealed to the U.S. Court of Appeals, which affirmed the District Court:

"In this case, plaintiffs argue that the government failed to perform or was negligent in its performance of the specific duties prescribed by the NRP—namely, the provision of food, water, shelter, medical assistance, and transport to the Convention Center and to the Cloverleaf. (See Pls.’ Br. 34.)"

"The NRP directives that plaintiffs cite permit agents to exercise judgment or choice that is subject to policy analysis. We therefore hold that the government’s conduct under the NRP—even its failure to provide food, water, shelter, medical assistance, and transport to the Convention Center and to the Cloverleaf—qualifies under the Stafford Act’s discretionary function exception."

"Under the first prong of the Berkovitz test [U.S. Supreme Court’s decision in Berkovitz v. United States, 486 U.S. 531 (1988], plaintiffs fail to identify any specific, nondiscretionary function or duty that does not involve an element of judgment or choice. To the contrary, plaintiffs cite a large number of NRP provisions that contain generalized, precatory, or aspirational language that is too general to prescribe a specific course of action for an agency or employee to follow."

The 5th Circuit also held that the plaintiffs can not sue under Federal Tort Claims Act, since the FTCA "excepts discretionary functions and duties from the waiver of sovereign immunity."

Likewise, the government is immune from liability for the breach of the water levy. Congress in the Flood Control Act of 1938, while authorizing federal damns and other flood controls, provided in the Act: "No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place."

The 5th Circuit concluded with these sobering observations:

"The tragedies that gave rise to this litigation were compounded by the well-documented inability at all level of government to provide timely relief to hurricane victims. The federal government has publicly admitted that it made mistakes; however, even if those mistakes caused decedent’s deaths, which we are presently in no position to determine, the federal government’s negligence does not give rise to tort liability absent the U.S. Government’s express waiver of sovereign immunity."

Legal Lessons Learned: We have all learned from the Katrina response issues. The good news is that this decision is consistent with many court cases, holding that Incident Commanders and other officials who exercise discretion at emergency scenes are generally not personally liable for their good faith conduct.

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NIMS / Incident Command - Safety Video Issued By U.S. Chemical Safety Board – Chemical Explosion Created Blast Wave In Danvers, MA

The Chemical Safety Board has just released an interesting video, regarding a massive explosion at a chemical manufacturing plant located near neighborhood homes in Danvers, Massachusetts, a suburb just north of Boston, at 2:46 am on November 22, 2008; see http://www.cbs.gov/index.cfm?folder=video_archieve&page+index.

The 18-minute is great training for FDs regarding NIMS and Incident Command at a disaster scene.

Legal Lessons Learned: U.S. Chemical Safety Board produces very informative videos of chemical accidents; it would be great if NIOSH would do the same in some LODD incidents.

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FEDERAL – CONGRESS PASSES 9/11 BILL – GRANTS, EMERGENCY OPERATIONS CENTER IMPROVEMENT, ENHANCED DRIVER’S LICENSES, CREDENTIALING OF FIRST RESPONDERS

On July 24, 2007, the U.S. House of Representative (H.R. 1) and the U.S. Senate (S.1) passed the Congress and was sent to President Bush for signature (http://thomas.loc.gov/). The bill implements many of the 41 recommendations made by the 9/11 Commission in 2004.

Grants: The bill provides $37.6 billion for the budge year starting Oct. 1, 2007, with $2.3 billion more that President Bush recommended, with most of this additional money going to state and local governments for emergency responders.

Emergency Operations Centers Improvement Program: The bill provides grants to States to equip, upgrade or construct “all-hazards” State, local or regional centers.

Interoperability Communications: The bill provides grants to maintain, throughout an emergency response operation, a continuous flow of information among emergency response providers, agencies, and government officers from multiple disciplines and jurisdictions and at all levels of government, in the event of a natural disaster or act of terrorism.

Enhanced Driver’s License: the bill calls for a pilot program to determine if an enhanced driver’s license, which is machine-readable and tamper proof.

Credentialing Emergency Responders: bill calls for nationwide standards for the credentialing of emergency responders, ensuring that such personnel possess a minimum common level of training, physical and medical fitness, and capability for the position, compatible with NIMS.

Legal Lessons Learned: These federal initiatives will have a great impact on Fire & EMS nationwide; read the bill and get a sense of the future.

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OHIO PATRIOT ACT – OHIO SUPREME COURT – ATTORNEYS SEEKING APPOINTMENT AS DEFENSE COUNSEL FOR INDIGENTS WHO REFUSE TO SIGN DECLARATION WILL BE DISQUALIFIED FOR APPOINTMENT

On September 13, 2006, in State ex rel. Triplett v. Ross, 111 Ohio St.3d 231, 2006-Ohio-4705, attorney Marc S. Triplett seeks continuing appointment by the Bellefontaine Municipal Court as an attorney for indigent criminal defendants, but he refused to sign the declaration that he is not a member of any terrorist organizations, and has not provided material assistance to a terrorist organization. The attorney claims that the form he is required to sign is “deeply offensive” and does “nothing to prevent terrorism.” The Ohio Supreme Court held that it did not need to decide the constitutionality of the Ohio Patriot Act, since the attorney made less than $100,000 annually in court appointments so the statute did not require he sign the state form.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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